Wednesday, November 21, 2007

Right to an audience

BOSTONThe state Department of Education acknowledged Monday it violated the free speech rights of a standardized test critic and agreed to pay him $187,000 to settle his lawsuit over being dumped as a speaker at a state-run conference.

Alfie Kohn, a former teacher who lectures widely, was asked to discuss his views on standardized tests, including the Massachusetts Comprehensive Assessment Systems test, at a 2001 conference on public schooling in the state's western region.

Kohn said state education officials, after learning he planned to focus on his opposition to the MCAS, forced local organizers to cancel his speech after threatening to withdraw $28,000 in state funding. His lawsuit alleged that state officials violated his rights and kept others from hearing his views.

In a statement Monday, the education department acknowledged it had violated Kohn's First Amendment rights [Emphasis added]. In a letter written as part of the settlement, the department said its position "is that vigorous debate about education issues is healthy and welcome."

The suit was filed by the state chapter of the American Civil Liberties Union on behalf of Kohn, a school principal, a counselor and a parent. In the settlement, Kohn will receive $7,500 and his attorneys will get $179,500, the ACLU said.

This could be a precedent for a new get-rich-quick scheme. Demand an audience at taxpayer's expense. If denied, claim huge damages.

My understanding of the 1st amendment is that the state cannot deny your right to free speech (except for yelling fire in the wrong places, etc.), but you have no right to an audience. This case is a scandal. Shame on the education department for squandering public funds.

6 comments:

I'm a little confused by your reaction. My understanding of the first amendment is similar to yours. It would seem that here, the government directly interfered with the practice of free speech:

"Kohn said state education officials, after learning he planned to focus on his opposition to the MCAS, forced local organizers to cancel his speech after threatening to withdraw $28,000 in state funding."

To me, that sounds like the government extorted local organizers in order to prevent someone from speaking. That sounds pretty much like a denial of first amendment rights.

The government used its power to persuade someone to place constraints on Kohn's free speech.

Correct me if I'm wrong, but it appears that your post is saying that the government should never fund a speaker who disagrees with the government.

In this case, Kohn was invited to speak at a conference on public education partially supported by the Department of Education. That government agency then threatens to withdraw the funding for the sole reason that Kohn is a critic of their policies.

My only question here is what took the courts so long to find in favor of Kohn?

My guess is the author looks at this situation as example of government speech. In 1991, the Supreme Court said, in Rust v. Sullivan, that the government can and does have a viewpoint as expressed through statutes and regulations. The court upheld a ban on government funds going to groups that might counsel "patients" on the availability of abortion. Under Rust, the Massachusetts Department of Education could ban funds from flowing to groups/people opposed to standardized testing.More details would be helpful but I don’t think that’s what happened here. It sounds like the government supported a conference, a designated public forum for discussion of public education. Everything was okay until the views of the conference speakers were revealed. At that point, the government balked. Once it created the forum, it had to allow opposing viewpoints to be expressed. Note that some restrictions would be allowed, for example, groups wanting to discuss topics unrelated to public education could certainly have been prevented from speaking.

I, too, am confused. I don't think he was claiming a "right to an audience." He was simply demanding the right to speak his views, having already been invited to do so.

Had he not been invited, there would be no case at all. Since the contract had already been signed, did the government have a legal right to withdraw funds?

The decision itself contains much interesting discussion and cites relevant caselaw. The government has the right to deny funding of speech on the basis of content, not viewpoint. Hence the unconstitutionality of the DoE's action:

"Although the source of the conference's fiscal support was a federal program, we may for present purposes consider the Commonwealth to be in the position of the ultimate underwriter. As such, the DOE could place certain limits on the conference's activities. Thus, for example, the DOE could appropriately object to the conference's sponsoring a keynote speech devoted to, say, The Significance of the Infield Fly Rule, a topic not remotely or arguably related to the conference's stated purpose.

If, however, the conference organizers chose to invite a speaker and countenance an address on a topic which a reasonable person might believe pertinent--even marginally pertinent--to the conference's raison d'être,the government, acting through the DoE, could not constitutionally object."

There are subtleties to this case--but that's the gist of it, as far as I understand.

Heads up: The publishers of Every Day math say the Texas Dept. of Ed violated state law when they voted to exclude that program for textbook adopted by the state. I smell litigation in the making with this one. Texas is claiming it's a first.